DHS Continues To Waive Laws To Speed Border Wall Build

By Emma Whitford
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Law360 (April 14, 2020, 5:46 PM EDT) -- As the coronavirus pandemic unfolds, the U.S. Department of Homeland Security is continuing to waive environmental and Native American preservation laws in order to expedite border wall construction in Texas, according to an unpublished notice added Tuesday to the Federal Register.

Acting DHS Secretary Chad Wolf announced Tuesday that he will again waive dozens of laws in order to expedite wall construction and address an "acute and immediate need" to block unlawful border crossings. 

Tuesday's order focuses on Starr County, Texas, communities including Salineno, Escobares and Rio Grande City. The waived laws include the National Environmental Policy Act, the Clean Air Act and the Archaeological and Historic Preservation Act.

"In order to ensure the expeditious construction of the barriers and roads in the project areas, I have determined that it is necessary that I exercise the authority that is vested in me," Wolf said in the notice, which is scheduled to be published on April 15.

These waivers issued for the Rio Grande Valley sector follow several similar waivers in other geographic areas to speed construction of the barrier, going back to 2018, and as recent as March 16.

This latest order also comes as Democratic lawmakers demand that border wall construction be stopped in light of the COVID-19 pandemic.

Federal resources earmarked for the border wall should be immediately diverted to fighting the ongoing pandemic, Democratic Reps. Raul M. Grijalva and Ann Kirkpatrick of Arizona, Filemon Vela of Texas and Bennie G. Thompson of Mississippi wrote in an April 8 letter to the U.S. Department of Justice, adding that construction workers are concentrated in small border towns with limited health care resources.

"Continuing to waive laws that protect our basic public health and safety to build the border wall puts the public health of border communities at risk," Vela said in a statement to Law360 Tuesday. "At a time in which health resources are strained and communities are rightfully staying at home to mitigate the spread of COVID-19, ramming the border wall through our communities puts everyone in danger." 

U.S. Customs and Border Protection is currently turning back 80% of southern and northern border crossers they encounter in light of a March 21 order to deny those who "potentially pose a significant health risk," according to an April 9 press release from the agency.

Wolf and his predecessors Kevin McAleenan and Kirstjen Nielsen have invoked the Illegal Immigration Reform and Immigration Responsibility Act of 1996 to waive laws aimed at protecting the environment, endangered species, archaeological sites, drinking water and Native American burial sites, according to earlier notices. In February, Wolf also used the 1996 law to waive contracting rules for the first time.

Border Patrol arrested more than 339,000 unlawful border crossers in the CBP's Rio Grande Valley Sector in 2019, according to Tuesday's notice.

The Center for Biological Diversity and other environment groups petitioned the Supreme Court in February to limit President Donald Trump's waivers of federal and local laws for border wall construction.

"Trump is endangering lives by allowing border wall construction during the pandemic, and now he's fast-tracking walls through Texas communities," Laiken Jordahl, a campaigner with the Center for Biological Diversity, told Law360 in a statement on Tuesday. "These new waivers mean Texas families will lose their homes, wildlife will die and people will be walled off forever from the beautiful Rio Grande. Trump's priorities are delusional in this time of crisis. All border wall construction must stop now."

DHS did not immediately respond to a request for comment Tuesday.

--Additional reporting by Kelly Zegers, Kaitlyn Burton, Michael Phillis, Katie Pohlman and Craig Clough. Editing by Alanna Weissman. 

Update: This story has been updated with comment from Vela. 

For a reprint of this article, please contact reprints@law360.com.

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